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Tolsher v Deputy Commissioner Robert Gee[2019] QCAT 178

Tolsher v Deputy Commissioner Robert Gee[2019] QCAT 178

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Tolsher v Deputy Commissioner Robert Gee [2019] QCAT 178

PARTIES:

DAVID TOLSHER

(applicant)

v

DEPUTY COMMISSIONER ROBERT GEE

(respondent)

APPLICATION NO/S:

OCR255-18

MATTER TYPE:

Occupational Regulation

DELIVERED ON:

19 June 2019

HEARING DATE:

1 May 2019

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. The decision of the respondent in respect of Matter 1(a) is set aside.
  2. The decision of the respondent in respect of Matter 1(b) is confirmed.
  3. The sanction imposed by the respondent is set aside.
  4. In respect of Matter 1(b) the applicant is reprimanded.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE – MISCONDUCT AND BREACH OF DISCIPLINE – where applicant retained in his possession an iPhone which was evidenced to be used in the prosecution of a criminal offence – whether the retention of the iPhone was in breach of the Operational Procedure Manual – whether the applicant was authorised to retain the iPhone – whether the retention of the iPhone was justified in the circumstances – whether the applicant’s conduct in retaining the iPhone in his possession was contrary to the Operational Procedures Manual constituted misconduct or alternatively breach of discipline – where officer conducted interviews alone with potential witnesses; where officer did not make written record of interviews – whether conduct of failure to follow procedures in conducting interviews was misconduct or breach of discipline

Queensland Civil and Administrative Tribunal Act 2009 s 20

Police Service Administration Act 1990 (Qld) s 7.4,

Police Service (Discipline) Regulations 1990 ss 3, 9

Deputy Commissioner Ian Stewart v Dark [2012] QCA 228

Commissioner Stephen Hollands v Tolsher [2016] QCATA 123 at [22]

Briginshaw v Briginshaw (1938) 60 CLR 235

APPEARANCES:

 

Applicant:

N Smith of Gilshenan & Luton Legal Practice

Respondent:

S McLeod QC instructed by Queensland Police Service Legal Unit

REASONS FOR DECISION

Introduction

  1. [1]
    On 30 January 2018, Mr Tolsher[1] was directed to attend a disciplinary hearing in respect of allegations that he had engaged in official misconduct. On 10 September 2018 Deputy Commissioner Gee made a decision that Mr Tolsher had engaged in official misconduct by retaining evidence to be used in a criminal prosecution, an iPhone, in his personal possession rather than storing it in a secure facility at the police station. He also concluded that the manner in which he conducted an investigation into images of women found on the iPhone, was contrary to the Operational Procedures Manual and constituted misconduct.
  2. [2]
    Having been satisfied that the misconduct had been substantiated he imposed a sanction of reduction in rank from Senior Sergeant paypoint 4.3 to Sergeant, paypoint 3.5 for a period of 2 years[2]. The sanction also provided that he could resume his rank of Senior Sergeant paypoint 4.3 after the 2 year period ‘dependent upon your satisfactory work and disciplinary performance over this period’.
  3. [3]
    On 24 September 2018 Mr Tolsher filed an application to review the Deputy Commissioner’s decision in the Tribunal contending, inter alia, that there was insufficient evidence to substantiate his conduct as misconduct, and further, that the sanction imposed was excessive in the circumstances. Alternatively, that his conduct did not amount to misconduct but rather a breach of discipline.
  4. [4]
    Under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the function of the Tribunal is to produce the correct and preferable decision by way of a fresh hearing on the merits, having regard to the evidence adduced at the hearing of the review application.
  5. [5]
    The Deputy Commissioner made his decision based on evidence gathered as a result of two investigations into Mr Tolsher’s conduct. The investigations arose as a result of a complaint by Mr XE, who was charged with the offence of rape in June 2012 when Mr Tolsher was the Officer in Charge of the CIB at Ipswich Police Station.
    Mr XE was charged by Detective Constable Tolete but Mr Tolsher undertook further independent investigations after sexually explicit images of three other women, were found on Mr XE’s iPhone. Mr Tolsher interviewed these women, DT, HA and NE about the images.
  6. [6]
    The initial investigation in relation to Mr Tolsher’s use of the iPhone[3] was conducted by Detective Senior Sergeant Dixon, of the Ethical Standard Command (‘ESC’), who produced a report dated 16 February 2015. In undertaking the investigation he interviewed a number of persons, including Mr Tolsher, Detective Senior Sergeant Salton and one of the women whose images appeared on the iPhone.
  7. [7]
    DSS Dixon came to the conclusion that in respect of the use of the iPhone there was no breach of discipline or official misconduct. It seems he did not investigate the substance of Matter 1(b) referred to below.
  8. [8]
    Subsequent to that investigation the ESC embarked on a further investigation of the complaint, which again involved interviewing the same people, including Mr Tolsher, DSS Salton, DC Tolete, SC Walker and all of the women referred to above. It was as a consequence of the second investigation and the evidence gathered that the Deputy Commissioner made his decision. The substance of the evidence gathered in both investigations did not largely differ although the second investigation was more detailed.
  9. [9]
    The allegations made against Mr Tolsher that were considered by the Deputy Commissioner are in the following terms:

Matter 1

That between 25 June 2012 and 8 July 2012 at Brisbane and elsewhere your conduct was improper in that you:

  1. (a)
    inappropriately dealt with an exhibit namely a mobile phone obtained from the Ipswich Police Station Property Point; and
  2. (b)
    inappropriately conducted official police enquiries with members of the public who were possible victims or witnesses to sexual and/or privacy offences.
  1. [10]
    Detailed particulars of the charges were provided in support of the allegations made are as follows:

i. On 24 June 2012, Mr XE was arrested by the Ipswich Criminal Investigation Branch (CIB) for the offence of rape, at which time an iPhone 5 was seized from Mr XE and lodged at the Ipswich Police Station Property Point as an exhibit; and

ii. The iPhone 5 exhibit contained several images of naked women who were considered potential witnesses or victims in relation to possible sexual and/or privacy related offences.

In relation to Matter One (a):

i. You removed the exhibit from the Ipswich Property Point without properly recording all movements within QPRIME in order to carry out inquiries with women you suspected were depicted in the images contained within the iPhone;

ii. You accessed information and images on the iPhone enabling you to identify the names and addresses of the potential witnesses or victims;

iii. You maintained personal possession of the exhibit over a period of days and stored the device at your home address in a Milo tin modified to allow you to maintain a constant charge to the phone;

iv. Whilst the iPhone was in your personal possession at your home address and elsewhere, Mr XE who at that time was considered a rape suspect remotely monitored the iPhone and subsequently identified your home address through your failure to adequately safeguard the iPhone electronically;

v. Whilst the iPhone was in your personal possession cellular data was downloaded to the iPhone and the iPhone became connected to a public Wi-Fi signal at a McDonalds Restaurant on a number of occasions; and

vi. You accessed the iPhone on multiple occasions prior to a complete forensic examination by the Electronic Evidence Examination Unit, potentially contaminating evidence of the commission of an offence.

In relation to Matter One (b):

i. You attended the home addresses of Ms NE and Ms DT and the business address of Ms HA whose personally sensitive images appeared on the iPhone 5 seized as an exhibit from Mr XE;

ii. When attending the addresses of Ms NE, Ms DT and Ms HA you identified yourself as a police officer;

iii. You were not on rostered duty at the time you attended the addresses of Ms NE and Ms HA;

iv. You failed to formally record any conversation and were not in the company of a corroborating officer when discussing potential sexual and/or privacy related offences with either Ms NE, Ms DT or Ms HA;

v. During your enquiries with Ms NE, Ms DT and Ms HA you displayed to them each, images contained on the iPhone, including naked images of various women whilst asking them to identify any of the images that were of themselves; and

vi. Your official enquiry at Ms NE’s residence was approximately 30 minutes in duration. However, you remained at Ms NE's residence for a total of approximately 90 minutes wherein you discussed matters relating to your own personal relationship. In all of the circumstances your actions reasonably caused Ms NE to feel uncomfortable and uncertain as to your intentions.

Further Background

  1. [11]
    In June 2012 Mr Tolsher was the relieving Acting Detective Senior Sergeant Officer in Charge of Ipswich CIB. He had been in the Queensland Police Service since 1993.
  2. [12]
    On 24 June 2012 Detective Constable Tolete, of the Ipswich CIB under the supervision of Mr Tolsher, arrested Mr XE and charged him with the offence of rape as a result of a complaint made by Ms NA. As part of that complaint, it was alleged by Ms NA that Mr XE had used his iPhone to take indecent photographs of her.
  3. [13]
    Because of the alleged unlawful use of the mobile phone, soon after the arrest the iPhone’s contents were examined by a forensic expert, Senior Constable Walker of the Ipswich District Intelligence Office, by utilising specialised software. He recovered additional images of women in secreted folders and informed Mr Tolsher, as the Officer in Charge, about these other images. After the content of the mobile iPhone was downloaded for backup, Mr Tolsher decided that an investigation was warranted into whether the additional images on the iPhone had been taken with those persons’ consent.
  4. [14]
    Normal procedures for holding evidence, like the iPhone, that might be necessary for a criminal prosecution is by storing the evidence at the police station in a facility referred to as Property Point. The item is signed in, and if it is needed at any time, it is then signed out to the individual in need of the item. The purpose of the Property Point is to ensure the integrity of any physical item that might later be needed for a prosecution. There is no doubt that Mr Tolsher was aware of these procedures as set out in the Operational Procedures Manual, and from his own extensive experience in the QPS.
  5. [15]
    However, there was a sensitivity concerning this investigation. Because of Mr XE’s occupation[4] and because the images on the iPhone were ‘sexually explicit’[5] involving third parties, Mr Tolsher was concerned to ensure that any further investigation was carried out discretely, and that the images would not be viewed by others in the Ipswich Police Station not connected with the investigation. He was also concerned for the privacy of the individuals whose images were on the iPhone.
  6. [16]
    In order to conduct the investigation with discretion, Mr Tolsher consulted with his immediate supervisor, Acting Inspector Troy Salton on 24 June 2012. The effect of the conversation was that they both agreed that Mr Tolsher should carry out the investigation concerning the images and report back to him (Salton). He was concerned that viewing of the images in the iPhone should be restricted and therefore Mr Tolsher should retain possession of the property, the iPhone. He also authorised the use of forensic testing although by this stage the iPhone had been accessed by SC Walker.
  7. [17]
    The conversations between Mr Tolsher and ADS Salton are, in my view, central to Mr Tolsher’s subsequent use of the iPhone and what he understood from those conversations. The first time either of them had to refer back to those conversations in June 2012 was when the matter was first investigated by DSS Dixon in about February 2015, some 2.5 years after the relevant events. It is useful to have regard to what they both told DSS Dixon at that time.
  8. [18]
    In the interview with DSS Dixon, Mr Tolsher said that in his discussions with ADS Salton it was decided that he would ‘handle the issues to do with alleged taking of the images unlawfully, in house, to avoid any escalation of any other people being involved with it’. Thereafter, Mr Tolsher took possession of the iPhone and he was briefed on how Mr XE might be able to erase the content on the phone remotely. To avoid this he was told that the iPhone should be secured in a metal container. He went to the Scenes of Crime (‘SOC’) section of the Ipswich Police Station to obtain such a suitable container but there was nothing suitable available. He was advised to use a container like a milo tin which would have the same effect. He did in fact have a milo tin at his home and used this to store the iPhone in when not in use.
  9. [19]
    In respect of that issue, it is to be noted that when he saw the charge on the phone depleting, he used his own iPhone charger at his home to recharge it but still leaving it in the milo tin. During the first night, he recalls hearing the phone making noises indicating that messages were coming through on the phone. He said he checked those messages only to see if they related to the numbers of the women he wanted to interview. Thereafter, he used the phone to conduct the interviews with the various women.
  10. [20]
    DSS Dixon requested ADS Salton to provide a statement (by email) as to his recollection of the conversations and the events concerning the use of the iPhone back in June 2012. He responded by email and said, inter alia, that:
  • At the time of arrest (Sunday 24 June) the mobile phone of Mr XE was seized. I can recall that I had a discussion with A/DSS Tolsher around the need to ensure that the information/pictures etc contained in the phone/folders was restricted. It was agreed that DSS Tolsher would attend to this aspect of the investigation. Due to the sensitive nature of the investigation, the need to continually brief up, and possible urgent forensic testing it was discussed and decided that Tolsher retain possession of this property to ensure any content was restricted, whilst still being accessible for any urgent examination required to advance the investigation.
  • In the subsequent days 27 June 2012, A/DSS Tolsher had a conversation with me about information he could recover from Mr XE’s phone. In summary it was believed that there were hidden folders on the phone that Tolsher could not access them. Advice from Scientific section was that specific software was needed to recover. Tolsher retained possession of the phone, attended Scientific section with the phone to have it examined.

In summary, and specific to this investigation:

Upon discussion with A/DSS Tolsher it was decided that due to the nature of the incident (sexually implicit material) and the position of the suspect (serving ……member), that the most practicable and effective course of action (whilst still ensuring evidentiary integrity) was for one person (namely Tolsher) to be responsible for the property seized (mobile phone). Another significant factor was that this matter occurred over a weekend and after hours, and the investigation would be unduly hindered if the property was locked away outside of business hours.

  1. [21]
    DSS Dixon had regard to that statement in concluding that Mr Tolsher retained possession of the phone due to the sensitive nature of the investigations and explicit material on the phone. Also that investigative strategies were adopted to ensure the content was restricted during the investigation while still maintaining evidentiary integrity.
  2. [22]
    The second investigation conducted by DSS Lockhart was in February 2016. She interviewed DSS Salton who confirmed the content of the email, but he also told her that he had made certain assumptions about how Mr Tolsher would secure the iPhone when not physically in his possession. He told the interviewer:[6]

That I did not give him specific advice as to how to do the investigation because rightly or wrongly I assumed as a Senior Sergeant I would not have to go into the, the, the um nuts and bolts of how to, to do that. It was, it was just, it was more mm that make sure it’s all it’s, it’s not kind of hanging around um and there wasn’t too much conversation as far as the other that it needs to, that we need to get it tested …

  1. [23]
    When questioned about his comment about Mr Tolsher retaining possession, he said:

So that was the conversation as far as instead of that we need to retain um possession of it so we can advance, because getting a lot of phone calls briefing and, and um rightly or wrongly um we need to make sure we progressed, progressed the investigation so that was, that was around that um conversation. There was no specifics in my mind I, and I, as I said before um often you can um lodge an exhibit and sign it out to yourself type of thing so that was my…and I don’t know if I articulated um to him at the time but that’s what I was thinking as far as um lodge it but don’t put it in the drop safe make sure like lodge it and then sign out or tag it out from Q-Prime aspect as far its [sic] in, in the possession for the investigator to do further testing and that type of thing…[7]

  1. [24]
    It is evident from the interview, that DSS Salton did not deviate from the statement in the email although he did seek to qualify it somewhat under the questioning from DSS Lockhart as to what he assumed would take place, but even so, in the interview it is evident he was somewhat vague about what was to be expected. I take from that that he, more or less, left it all to Mr Tolsher.
  2. [25]
    The reference to “briefing up” in the email is important because DSS Salton wanted to be kept appraised of the investigation given its sensitivity and also, I infer, because he knew that Mr Tolsher was going to retain possession of the iPhone. Mr Tolsher continuously kept DSS Salton informed about the progress of the investigation.
  3. [26]
    This aspect of the investigation is, in my view, critical, because it turns on whether Mr Tolsher was embarking on an investigation knowing full well that he was doing so in non-compliance with the OPM. If he had the permission and authority from his superior to retain possession of the phone then this, according to his submission exonerates him from any fault despite failing to follow the procedures under the OPM. As was discussed during the hearing with counsel for the Deputy Commissioner, there are obviously times when operational matters might require non-adherence with the OPMs.
  4. [27]
    I have looked carefully at the evidence given by Mr Tolsher to Acting Inspector Dixon on 11 January 2015[8] and, in particular, pages 5-7 where his version of events is consistent with that of DSS Salton as contained in his email.
  5. [28]
    I have come to the conclusion, and find, particularly in reliance on DSS Salton’s email of 23 February 2015, that the effect of the conversation was that Mr Tolsher was authorised by him to retain possession of the phone for the purposes of the investigation. Although DSS Salton may have been somewhat equivocal about this in his interview with DSS Lockhart, his statement that ‘The most practical and effective course of action … was for one person (namely Tolsher) to be responsible for the property seized (mobile phone)’ can lead to only one conclusion. That can only be, in my view, that he knew Mr Tolsher would retain the phone in his physical possession for the duration of the investigation.
  6. [29]
    Furthermore, Mr Tolsher’s conduct is certainly consistent with the above finding because he sought to obtain a container to secure the device e.g. a milo tin to store the iPhone to prevent any external source from wiping its contents. Had Mr Tolsher understood DSS Salton meant anything other than for him to keep possession of the phone, he would not have gone to those lengths to secure it. Also, he returned the iPhone to the Property Point as soon as he had concluded the interviews with the three women referred to above.
  7. [30]
    It has been argued by the Deputy Commissioner that if I were to make that finding, I should still find that, despite Mr Tolsher being given permission by his superior to retain possession of the iPhone, he should have ignored that permission and still followed the procedures under the OPM and returned the iPhone to the Property Point for storage when not being used in the investigation. There is no evidence as to whether the Property Point is secure and would prevent the wiping of the iPhone from an external source. Even so, once he had permission to retain possession of the iPhone, it is difficult to understand, given the sensitivity surrounding the investigation to which everyone seems to agree, why he would not keep possession of it even though it was contrary to the OPM.
  8. [31]
    To be clear, this further investigation was in addition to and separate from the allegations made against Mr XE by Ms NA. However, the content of the iPhone may still have been relevant evidence in any prosecution against Mr XE.

The Interviews

  1. [32]
    Between 25 June 2012 and 8 July 2012, Mr Tolsher retained possession of the mobile phone and interviewed three women whose images appeared on the iPhone. The interviews occurred at different times. Mr Tolsher made arrangements to interview them at convenient times to suit them rather than himself when he was on duty, again because of the sensitivity of the content of the images to ensure it was not too uncomfortable for them. I accept his reasoning for this.
  2. [33]
    Ms DT was interviewed by Mr Tolsher at her home in Ipswich. The interview was short and she immediately informed Mr Tolsher that the photographs on the iPhone were taken with her consent. She saw no other photographs on the phone and had no further contact with Mr Tolsher after the interview concluded.
  3. [34]
    The next interview was with Ms HA which was similar to the first. She was shown the photographs on the iPhone, informed Mr Tolsher that they were taken with her consent and there was no further discussion of substance. It was very short and then Mr Tolsher had no further contact with her.
  4. [35]
    In respect of the third person, Ms NE, that interview took place in her home late in the afternoon while she was trying to organise her children and make the evening meal. The interview was quite protracted and was not confined simply to the photographs on the iPhone. Ms NE immediately told Mr Tolsher that the photographs of her were taken with her consent similar to the other two women who were interviewed. There was general discussion between them and, according to Ms NE, Mr Tolsher showed her photographs of other women, engaged in sexually explicit activities. She denied any knowledge of these other women. Mr Tolsher stayed around while she put the children in the bath and conversed about his own personal matrimonial problems. There was discussion about the photograph of the wife of another police officer who was known to Mr Tolsher.
  5. [36]
    Ms NE in her interview with DSS Lockhart said that she felt uncomfortable being with Mr Tolsher, him showing her photographs that were unrelated to her and the topics of conversation. Ms NE felt like Mr Tolsher was prying into her private life by telling her personal things about his relationship with his family and the whole situation felt very awkward for her. She said, in her interview, that she felt as though Mr Tolsher spent much more time than was necessary for the purposes of his inquiry and it was like he was going to ask her out on a date.
  6. [37]
    By reference to the particulars in relation to matter 1(b) the complaint essentially is that Mr Tolsher did not follow procedures for the interviews by having a corroborating police officer with him, did not take a record or notes of the conversation he had with the three women, and in particular in respect of Ms NE, he went far further than was necessary in the interview process which caused her to feel uncomfortable.
  7. [38]
    The fact is that he did not have an accompanying police office. His excuse for that is he wanted to build a rapport with each of the interviewees so that he would not embarrass them by showing them the photographs in the presence of another police officer. Similarly, in respect of taking notes of the conversation in some sort of official way, would have been itself, somewhat intimidatory and would have made them feel uncomfortable. He simply wanted to make sure that the enquiry was undertaken in a relaxed manner to get their responses which he did in respect of the first two persons’ interview but in respect of Ms NE, it obviously did go further than was necessary. Particularly when she showed her pictures of other women which I accept that he did on the basis of Ms NE’s evidence. This may have been a legitimate enquiry to ascertain the identity of those persons but it would seem from the content of those images that they were unlikely to be persons known to her because her relationship with Mr XE did not involve mutual friends.
  8. [39]
    Mr Tolsher does not admit that he did show the photographs of other women, but does admit that he remained at the premises for an extended period talking about general matters including personal matters. He says that Ms NE had a motive for embellishing her version of events because of her relationship with Mr XE. As was pointed out by counsel for the Deputy Commissioner, and rightly so, if there was any contest in the version of events this could have been corroborated by another police officer and that is the very purpose of having another person present during the interview process. Furthermore, had he taken notes of the conversation in an official police notebook that might have assisted him in terms of this credibility issue.
  9. [40]
    Each of these women told Mr Tolsher that the images were taken by Mr XE with their consent. Once he had obtained that information from Ms NE he should have left her home and let her get on with her domestic tasks with the children.
  10. [41]
    At the conclusion of the interviews he then returned to the iPhone to either the Ipswich Police Station Property Point or gave it to DC Tolete, there is some uncertainty about this.

Relevant Legislation

  1. [42]
    Section 7.4 of the Police Service Administration Act 1990 (Qld) authorises the Deputy Commissioner to take disciplinary action against a serving police officer if satisfied that the police officer engaged in misconduct or breach of discipline. Under the section the Deputy Commissioner has the following powers:
  1. (3)
    Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of the following-
    1. (a)
      dismissal;
    2. (b)
      demotion in rank;
    3. (c)
      reprimand;
    4. (d)
      reduction in an officer's level of salary;
    5. (e)
      forfeiture or deferment of a salary increment or increase;
    6. (f)
      deduction from an officer's salary payment of a sum equivalent to a fine of 2 penalty units.
  2. (4)
    Every order made by way of disciplinary action takes effect in law and is to be given effect.
  3. (5)
    To remove any doubt, it is declared that a reference in the QCAT Act, section 157(2) to a decision includes a reference to a finding.
  1. [43]
    Section 9 of the Police Service (Discipline) Regulations 1990 (Qld) sets out the grounds for taking disciplinary action. It alleged that that particulars of Matter 1(a) and 1(b) constitute misconduct under s 9(1)(f) as the Deputy Commissioner found.             
  2. [44]
    It is also useful to have regard to the purpose of police disciplinary proceedings. This is contained in section 3 of the Police Service (Discipline) Regulations 1990 (Qld). The section sets out the objects of the Regulations, as follows:
    1. (a)
      provide for a system of guiding, correcting, chastising and disciplining subordinate officers;
    2. (b)
      ensure the appropriate standards of discipline within the Queensland Police Service are maintained so as -
      1. (i)
        to protect the public; and
      2. (ii)
        to uphold ethical standards within the Queensland Police Service; and
      3. (iii)
        to promote and maintain public confidence in the Queensland Police Service.
  3. [45]
    Standing in the shoes of the Deputy Commissioner, I must also have regard to his expertise in the administration of the police service and the sanction imposed.[9]

Misconduct and Breach of Discipline

  1. [46]
    Section 7.4(2) of the Police Service Administration Act 1990 (Qld) provides that a officer is liable to disciplinary action in respect of two different types of conduct that is, ‘breach of discipline’ and ‘misconduct’.
  2. [47]
    Section 7.4(2) sets out the types of conduct which a police officer can be the subject of disciplinary action, either breach of discipline and misconduct. They are defined under s 1.4 as follows:

breach of discipline means a breach of this Act, the Police Powers and Responsibilities Act 2000 or a direction of the commissioner given under this Act, but does not include misconduct.

misconduct means conduct that -

  1. (a)
    is disgraceful, improper or unbecoming an officer; or
  2. (b)
    shows unfitness to be or continue as an officer; or
  3. (c)
    does not meet the standard of conduct the community reasonably expects of a police officer.
  1. [48]
    There are, no doubt, many cases where a police officer’s conduct speaks for itself so as to fall within the definition of misconduct. There is also conduct which is on the margins and close scrutiny is required to determine if the conduct fits the definition. The conduct must be considered in the context of the particular circumstances as was the case in Deputy Commissioner Ian Stewart v Dark.[10] The Court of Appeal found that lying to a superior about taking sick leave for fear that information divulged to his former wife could be used to his detriment was breach of discipline in the context of that case. It also found that swearing a false declaration in matrimonial proceedings, and unrelated to police work, amounted to misconduct thus reversing the decision of the QCAT Appeal Tribunal. Even though this was done against the background of a bitter matrimonial dispute the Court said:

The respondent’s duplicity was studied and involved the use of a purported statutory declaration to lend solemnity to his protestations. This serious duplicity, as the Appeal Tribunal found, was dishonourable and reflected poorly on his character…. The expectation of the QPS and the public is that officers will resist any such temptation and will continue to behave with due propriety regardless of stress.

  1. [49]
    What emerges from Dark is that the conduct complained of, when determining whether it falls within the definition of misconduct or breach of discipline, must be considered in the context of the particular case (my emphasis). This was reinforced by Carmody J in Assistant Commissioner Stephen Hollands v Tolsher.[11]

Consideration

Matter 1(a)

  1. [50]
    I have found that Mr Tolsher retained the iPhone with the express permission of DSS Salton to pursue the further investigation in respect of the images found on the iPhone.  Despite his understanding that he was to retain the iPhone in his possession, the Deputy Commissioner submits that given Mr Tolsher’s length of service and experience particularly as a Senior Sergeant, he ought to have known better and returned the iPhone to the Property Point. It is also submitted that DSS Salton did not have to go so far as to tell Mr Tolsher about the “nuts and bolts” of the proper procedures to be adopted because of his rank and experience.
  2. [51]
    However, Mr Tolsher’s conduct must also be considered in the context of this investigation. Firstly, it involved an individual working in emergency services which presumably if Mr XE did take the photos without consent and it became public knowledge would reflect badly on the integrity of that service. Secondly, it related to explicit images found on the iPhone and there was a genuine concern that if the iPhone was left at the police station, the content might be circulated. One should, naturally, assume with respect to the latter, such conduct by police officers ought not occur but acting out of an abundance of caution, both DSS Salton and Mr Tolsher simply wanted to ensure that this would not happen.
  3. [52]
    There is also criticism that by keeping the iPhone in his possession, it could have been corrupted through automatic connection to alternate Wi-Fi services such as occurred when it automatically connected to the Wi-Fi service in a McDonalds restaurant on a couple of occasions. It seems to me however, given that Mr Tolsher was unaware of this automatic connectivity, had he put it back in the Property Point and then retrieved it and went about his business to conduct the various interviews, had he come in close proximity with, for example a McDonalds, it would have connected automatically in any event. In this respect I note he did take steps, although somewhat unorthodox, to ensure the content was not accessed with the use of the milo tin.
  4. [53]
    Because the iPhone was in Mr Tolsher’s possession, the location of it could be ascertained by Mr XE which revealed Mr Tolsher’s home address to him. This falls within the same category as the Wi-Fi connection. Mr Tolsher was unaware of this and similarly, the iPhone’s location could have been ascertained no matter where Mr Tolsher happened to be with the iPhone whilst conducting the investigation, once it was taken from the Property Point.
  5. [54]
    It should also be noted that during the course of the investigations Mr Tolsher kept DSS Salton “briefed up” as the investigation progressed. He did nothing untoward in terms of the investigation with the iPhone, by retaining it in his possession. In other words, he did not use the iPhone for any other purpose.
  6. [55]
    In these circumstances and having regard to the definition in section 1.4, I find that his conduct was not ‘disgraceful’ or ‘unbecoming an officer’. His actions did not ‘show unfitness to be or continue to be a police officer’ by this conduct, nor did that conduct fail to ‘meet the standard of conduct the community reasonably expects of a police officer’. The only part of the definition which might have some relevance in the context of the overall behaviour, is whether his conduct was ‘improper’ by retaining the iPhone in his personal possession. As Carmody J held in Tolsher ‘improper’ in the misconduct definition requires ‘more than mere impropriety, performance deficiency or misjudgement’. He went on to say that, when used in this context, ‘improper’ may be construed as denoting wilful indifference or want and abuse of professional privileges and confidences or a real lack of integrity capable of eroding the trust and confidence in the officer’s moral character. Thus, he said, that the issue here may be accurately characterised as whether the conduct is so ‘morally or socially blameworthy’ that nothing short of a misconduct finding is called for.[12] Acting with the express permission of his superior does not fall within this description.
  7. [56]
    Therefore, applying this definition to the conduct of Mr Tolsher in retaining the iPhone in his personal possession having regard to the context of the investigation, I am reasonably satisfied[13] that the conduct does not fall within the definition of misconduct. I am also of the view, for the same reasons, that his failure to comply with the OPM and return the iPhone to the Property Point, when not specifically used for the purposes of interviews, did not amount to a breach of discipline. I come to that view because there was approval for his conduct from a superior who not only endorsed his retention of the iPhone, but also endorsed the manner in which he was to conduct the investigation because of its sensitivity.

 Matter 1(b)

  1. [57]
    Matter 1(b) takes on a different complexion in respect of the interview with Ms NE only. There was nothing untoward in the interviews with Ms DT or Ms HA, they were short, to the point, and the investigation stopped there and then. It certainly would have been prudent for him to have an accompanying officer to corroborate what occurred but, no criticism about Mr Tolsher’s conduct was raised by either of those two ladies.
  2. [58]
    Ms NE is certainly in a different context. I accept Mr Tolsher’s statement that he endeavoured to create a rapport with Ms NE, and the others, in order to delicately deal with the task of showing them photographs of themselves which may have and did embarrass them. Unfortunately with Ms NE he did not stop there and although there was nothing untoward in the general conversation about the images, it went on to develop into a situation where Ms NE felt not only embarrassed, but uncomfortable by Mr Tolsher’s presence in her home. The question of whether he showed her other images of women in compromising acts is in contest although Ms NE seems to be firmly of the view that this occurred. I note there is no mention of that in the initial interview with DSS Dixon. Apart from looking at the iPhone and the general discussion about Mr XE and Mr Tolsher’s family, there was no specific conduct as such on his part, having regard to what she said in the interview with DSS Lockhart which could be said to be intimidatory or threatening. But, there was no reason for him to show the photo of another police officer's wife.
  3. [59]
    It is submitted by Mr Tolsher, that I should treat Ms NE’s evidence with caution because of her relationship with Mr XE, and that Mr XE was aggrieved because of his arrest for the rape charge and that the charge was subsequently withdrawn. Further, that she spoke with Mr XE after the interview. I accept there was a close friendship between Ms NE and Mr XE but, having regard to the detail she went into with DSS Lockhart about what occurred during Mr Tolsher’s visit, I am not satisfied that this warrants a finding that I should not give weight to Ms NE’s evidence. One of the main reasons for this conclusion is, as was conceded by Mr Tolsher, that he spent up to about 90 minutes in her home when the interview itself concerning the images would have taken the same time as the others of not more than 20 minutes to a half hour at most.
  4. [60]
    The Deputy Commissioner contends that Mr Tolsher’s conduct whilst with Ms NE in particular, falls within the definition of misconduct and although not specifically stated, is unbecoming an officer and would not meet the standards of conduct expected of the of a police officer. There is certainly force to this submission and had another police officer been with him, any dispute about the content of the conversations could have been corroborated as submitted by Mr McLeod QC. This is undoubtedly correct.
  5. [61]
    In my view, in respect of his engagement with Ms NE, it was inappropriate for him to stay as long as he did, he ought not to have engaged in the topics of conversation that he did, nor should he have shown her photographs of other women. In the context of the investigation, there was no need to discuss these matters and I accept that Ms NE felt uncomfortable with Mr Tolsher’s presence in her home and also felt somewhat intimidated, such that she could not just tell him to leave because of his position. This is not the conduct the community reasonably expects of a police officer. This, therefore constitutes misconduct.
  6. [62]
    There also remains the criticism of the manner in which Mr Tolsher conducted the investigation in not recording the interviews or having an officer accompany him to the interviews, and he did so outside official duty hours. It is evident from what has been said about the interview with Ms NE why these procedures should be followed. Once again, the criticism must be considered in the context of the nature of this particular investigation. Failure to comply with these procedure, insofar as they concerned Ms DT and Ms HA, did not compromise the investigation. The same could be said in respect of Ms NE if the investigation was just confined to the images but in her case, the interview went much further whereby following procedures would have, in all probability not left her feeling uncomfortable and uncertain of Mr Tolsher’s intentions.
  7. [63]
    I have concluded that Matter 1(b) has been substantiated but only insofar as it relates to the official police inquiry involving Ms NE. In doing so I find that particulars have been satisfied, again as they relate to Ms NE.

Sanction in respect of Matter 1(b)

  1. [64]
    The sanction imposed by the Deputy Commissioner was in respect of both Matters 1(a) and (b). Because I have found that Mr Tolsher’s conduct in respect of Matter 1(a) did not constitute misconduct, or breach of discipline, the sanction imposed must be set aside.
  2. [65]
    In considering the appropriate sanction for Matter 1(b), I take into account Mr Tolsher’s long service in the Queensland Police Service and the references provided by senior police officers which attest to Mr Tolsher’s ethical, professional and competent commitment as a police officer and a community member. He was also supported by emails from other senior officers commending his action in police investigations and incidents. There are no incidents of disciplinary conduct prior to June 2012. Since that time Mr Tolsher has acted up into more senior roles which indicates that he has the confidence of the Commissioner.
  3. [66]
    One of the disturbing features of this case is the inordinate delay in arriving at a final determination in circumstances where the incidents subject of this proceeding occurred June 2012, the complaint was made in 2013, the first investigation was conducted in February 2015 when Mr Tolsher was first interviewed with the further investigation been instigated in February 2016 undertaken by DSS Lockhart. Then it wasn’t until September 2018 that the Deputy Commissioner made his decision and provided reasons. The Deputy Commissioner accepted that delay has impacted on Mr Tolsher emotionally and to some lesser extent, his career in the police service. In that time, he has continued to serve and promoted to the rank of senior sergeant in December 2014. As I said earlier, he has acted in superior roles knowing full well, this investigation was ongoing. That, no doubt takes its toll.
  4. [67]
    It has been substantiated that Mr Tolsher inappropriately conducted official police inquiries with Ms NE who was a possible victim or witness to a sexual and/or privacy matter. I find now that he has insight into that conduct, as he submitted to the Deputy Commissioner. He acknowledges that it would have been prudent to take a corroborating officer with him for the interviews and has learned from that mistake. He also submitted that his conduct was not premeditated, did not involve dishonesty, did not take advantage of people using his position, or use violence in any way. The manner in which he conducted the investigation, would be regarded as an error of judgement rather than a calculated enterprise to take advantage of the potential complainants.
  5. [68]
    I accept the genuineness of the submissions made by Mr Tolsher and accept that Mr Tolsher had a genuine concern to maintain discretion and reduce the embarrassment or discomfort for the potential witnesses.

I have had regard to the range of sanctions that are available under section 7.4(3) of the Police Service Administration Act referred to in paragraph 41 above. In the circumstances it would seem to me that an appropriate sanction would be a reprimand. I do so, having particular regard to the delay since the incidents the subject of this investigation occurred and the complaint made. I also bear in mind that there has been no formal complaint by Ms Jackson as to Mr Tolsher’s conduct. However, I am conscious of the fact that the parties have not had an opportunity to make any submissions on sanction. Therefore I will give each of the parties an opportunity to make submissions on sanction, and if they chose not to do so within the time specified in the direction I will issue, I will impose a sanction of reprimand.

  1. [2]
    The decision of the Tribunal is that:
  1. The decision of the respondent in respect of Matter 1(a) is set aside.
  2. The decision of the respondent in respect of Matter 1(b) is confirmed.
  3. The sanction imposed by the respondent is set aside.
  4. In respect of Matter 1(b) the applicant is reprimanded.

Footnotes

[1]  I will refer to the applicant as Mr Tolsher, rather than prefaced with rank as it changed over the years.

[2]  Deputy Commissioner’s Reasons, page 31.

[3]  He also investigated other complaints not relevant to this review application.

[4]  Tribunal Non-Publication Order, dated 18 December 2018.

[5]  Email statement of ADI Salton, 23 February 2015.

[6]  Record of Interview, page 19, line 605.

[7]  Ibid, page 20, line 655.

[8]  Record of Interview, pages 5-8.

[9]Aldrich v Ross [2001] 2 Qd R 235, [43], [45]; also Flegg v Crime and Misconduct and Anor [2013] QCA 376, [16].

[10]  [2012] QCA 228.

[11]  [2016] QCATA 123, [22].

[12]  Ibid, [5]–[7].

[13]Briginshaw v Briginshaw (1938) 60 CLR 336

Close

Editorial Notes

  • Published Case Name:

    Tolsher v Deputy Commissioner Robert Gee

  • Shortened Case Name:

    Tolsher v Deputy Commissioner Robert Gee

  • MNC:

    [2019] QCAT 178

  • Court:

    QCAT

  • Judge(s):

    Member Richard Oliver

  • Date:

    19 Jun 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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